State of Tennessee v. Demon L. Adkins

Nashville, TN - Criminal defense attorney represented Demon L. Adkins with two counts of possessing contraband in a penal institution charges.

Two controlled substances, consisting of one strip of suboxone and 0.04 grams of

methamphetamine, were discovered in the Defendant's eyeglasses case as he was leaving

Riverbend Maximum Security Institution to attend a trial in Davidson County. The

Defendant was indicted for violating the prohibition against contraband in a penal

institution. Count 1 of the indictment charged that the Defendant, identified as "DEMON

L. ADKINS, a.k.a. DEMOND LEE ADKINS, a.k.a. DEMONT L. ADKINS, a.k.a.

DAMON L. ADKINS”:

knowingly and intentionally did have in his possession, Suboxone, while

present in Riverbend Maximum Security Institution, a state institution,

where prisoners are quartered, under custodial supervision, without the

express written consent of the chief administrator of the institution, in

violation of Tennessee Code Annotated § 39-16-201, and against the peace

and dignity of the State of Tennessee.

Count two used identical language but identified the contraband as methamphetamine.

The statute at issue required the conduct to be knowing but did not require it to be

intentional.

During opening statements, the State summarized the elements of the offenses as:

"[t]o knowingly possess [the controlled substance] while in a penal institution where

inmates are under custodial supervision and without permission, in addition to what is on

there.” The theory of the defense was that the Defendant, who had come into and out of

the institution several times and was aware he would be very thoroughly searched, would

not have knowingly possessed drugs passing through security.

The Defendant does not challenge the sufficiency of the evidence, but, in brief, the

evidence at trial was that the Defendant was found in possession of the drugs on his way

to court. The State presented witnesses who testified that the Defendant's eyeglass case

was searched at approximately 7:00 a.m. on September 26, 2017, as he was leaving

Riverbend Maximum Security Institution, a penal institution, to attend trial in Davidson

County. Two officers had retrieved the Defendant from a cell where the Defendant was

housed alone. One of the officers asked the Defendant what items he wished to take with

him, and the Defendant indicated he wished to take some papers and his eyeglasses case.

An officer carried these items from the cell to the intake area, where the items were

searched while the Defendant underwent a strip search. A small, folded piece of paper in

the eyeglasses case contained two individually wrapped packages. Field testing at the - 3 -

facility and testing at the Tennessee Bureau of Investigation revealed that the packages

contained one strip of suboxone and 0.04 grams of methamphetamine. The State also

introduced video showing the movements of the officers during the search, and it

introduced two recorded telephone calls that the Defendant had made. During one call,

the Defendant told a woman that he "got popped with some ice and suboxone.... They

popped me real big. But at the end of the day, they don't know if they found it, or ... if

they got it off of me.” In another call, he stated he was bored because there was nothing

"to get high off.”

Officers at the prison and officers who worked in transportation for the

Department of Correction acknowledged that the Defendant had passed through security

at the institution several times and would have known that both his person and his

belongings would be subjected to a thorough search. In addition, officers from the

Department of Correction testified that when they accompanied an inmate to court, they

would remain with the inmate for essentially the entire duration of the day. One

transportation officer stated that the Defendant did not have permission to possess the

suboxone or methamphetamine, and another transportation officer confirmed that he was

not aware that the Defendant had permission to possess the substances.

The statutory provision prohibits both possession of and introduction of

contraband into a penal institution, and these offenses have different elements. The jury

instructions tracked the statutory language regarding possession of contraband in a penal

institution and also tracked the language in the indictment, but the offense was identified

in the instructions as "INTRODUCING CONTRABAND INTO A PENAL

INSTITUTION.” See T.C.A. § 39-16-201(b) (2017). The statute required, and the jury

was instructed to find, that the possession of the contraband must be committed

knowingly. See id. The verdict form instructed the jury to either find the Defendant

"guilty of introducing contraband into a penal institution” or "not guilty.” The jury found

the Defendant guilty of both counts.

Prior to the Defendant's September 2019 sentencing, the statute was amended to

classify possession of controlled substances in a penal institution as a Class D rather than

a Class C felony. 2019 Tenn. Pub. Acts, c. 486, § 7, eff. July 1, 2019. At sentencing, the

Defendant's older brother and a close friend testified that the Defendant had made

changes in his life the last time he was released from prison and that they would support

him if he were out of prison. They testified that the Defendant had a substance abuse

problem and could benefit from treatment outside a penal institution. The Defendant also

testified that he wanted to make a change in his life. He said that he wanted to attend

substance abuse treatment outside of a penal institution because drugs were too readily

available at the prison treatment centers. He acknowledged his extensive and violent

criminal history, but he stated that he had never been accused of a crime where someone - 4 -

was injured, except the conviction for which he was imprisoned "where the officers said

they [were] injured.” The trial court found the Defendant had a past history of criminal

behavior but that his conduct in this case did not cause or threaten serious bodily injury.

The court concluded that its sentencing discretion was limited because the Defendant was

a career offender, and it imposed concurrent sentences of fifteen years for two Class C

felonies to be served with a sixty percent release eligibility.

After sentencing, the Defendant moved to vacate and dismiss the convictions on

the basis that the indictment charged him with possession of contraband in a penal

institution and that the jury convicted him of introducing contraband into a penal

institution. The Defendant noted that the proof at trial only supported possession and

argued that the indictment was constructively amended.

The trial court found that there was no constructive amendment. It noted that the

jury was appropriately charged with the elements of the offense of possession of

contraband in a penal institution. The court noted that the title of the subsection was

"Introduction or Possession of Weapons, Explosives, Intoxicants, or Drugs into a Penal

Institution Where Prisoners are Quartered” and that the trial court was following the

pattern jury instructions when it instructed the jury, "Any person who commits the

offense of introducing contraband into a penal institution is guilty of a crime.” See 7

Tenn. Prac. Pattern Jury Instr.—Crim. 23.01. The trial court denied the motion to dismiss

and the motion for a new trial, and the Defendant appeals.

ANALYSIS

I. Error in Indictment

The Defendant asserts that the indictment does not charge a valid offense because

the statute did not require the Defendant to act intentionally but the word "intentionally”

was included in the indictment. The State responds that the indictment was valid. We

review the validity of an indictment de novo, State v. Smith, 492 S.W.3d 224, 239 (Tenn.

2016), and we conclude that because the indictment sufficed to adequately apprise the

Defendant of the offense with which he was charged, to furnish a basis for entry of

judgment, and to protect against double jeopardy, it was not invalidated by the inclusion

of the word "intentionally.”

Although the Defendant did not raise the issue prior to trial, the indictment's

alleged failure to charge an offense is not subject to waiver and may be raised at any time

during the proceedings. Tenn. R. Crim. P. 12(b)(2)(B) (listing as motions that must be

made prior to trial "a motion alleging a defect in the indictment, presentment, or

information — but at any time while the case is pending, the court may hear a claim that - 5 -

the indictment, presentment, or information fails to show jurisdiction in the court or to

charge an offense”); see State v. Nixon, 977 S.W.2d 119, 120 (Tenn. Crim. App. 1997).

Other, lesser, defects in the indictment, including "defects in the indictment that go to

matters of form rather than substance,” must be challenged prior to trial. Nixon, 977

S.W.2d at 121; see Tenn. R. Crim. P. 12(b)(2)(B). Here, the Defendant alleges that the

indictment failed to charge an offense.

The United States Constitution and the Tennessee Constitution guarantee an

accused the right to be informed of the nature and cause of the accusation against him.

U.S. Const. amend. VI; Tenn. Const. art. I, § 9. An indictment must function to: "'1) to

enable the accused to know the accusation to which answer is required, (2) to furnish the

court adequate basis for the entry of a proper judgment, and (3) to protect the accused

from double jeopardy.'” Smith, 492 S.W.3d at 239 (quoting State v. Hill, 954 S.W.2d

725, 727 (Tenn. 1997)). The touchstone for constitutionality is whether the accused is

provided sufficient notice of the charges against him. Hill, 954 S.W.2d at 729.

The Defendant points to the inclusion of "intentionally” in the indictment when

the offense required the State to establish only that the Defendant acted "[k]nowingly.”

See T.C.A. § 39-16-201(b)(2). An indictment need not list the mens rea if "the required

mental state may be inferred from the nature of the criminal conduct alleged.” Hill, 954

S.W.2d at 729. "'[A]n indictment which references the statute defining the offense is

sufficient and satisfies the constitutional and statutory requirements' for a charging

instrument.” State v. Duncan, 505 S.W.3d 480, 488 (Tenn. 2016) (quoting State v.

Hammonds, 30 S.W.3d 294, 300 (Tenn. 2000)); see State v. Sledge, 15 S.W.3d 93, 95

(Tenn. 2000) (concluding that when the indictment failed to include the mens rea but

cited to the relevant statute, the mental state could be inferred). "In other words, citing

the statute in the indictment provides the defendant with notice regarding the mens rea of

the offense, gives notice regarding the offense upon which to enter judgment, and

protects against future prosecution for the same offense.” Smith, 492 S.W.3d at 239.

This court avoids "'pettifogging, technicality or hair splitting'” when the indictment is

sufficient to allow the accused to know the charge. Id. at 241 (quoting Hill, 954 S.W.2d

at 728, and concluding that the indictment was not invalid when it charged the defendant

with "threatening to” commit domestic assault but the statute required the State to prove

that the defendant "attempted to” cause or caused bodily injury or committed or

attempted to commit an assault). The indictment need not allege the theory or means by

which an offense is committed and alternative means need not be listed so long as the

accused has sufficient notice of the charge. Duncan, 505 S.W.3d at 490; Hammonds, 30

S.W.3d at 302. A defendant may move for a bill of particulars when the indictment

meets constitutional requirements but the defendant desires more information about the

nature of the conduct at issue. Hammonds, 30 S.W.3d at 303. - 6 -

Here, the indictment referenced the statute prohibiting contraband in a penal

institution, which outlines the elements of possessing contraband and the elements of

introducing contraband into a penal institution. Under the statute in effect at the time of

the offense:

(b) It is unlawful for any person to:

(1) Knowingly and with unlawful intent take, send or otherwise cause to be

taken into any penal institution where prisoners are quartered or under

custodial supervision any weapons, ammunition, explosives, intoxicants,

legend drugs, or any controlled substances or controlled substance

analogues found in chapter 17, part 4 of this title;

(2) Knowingly possess any of the materials prohibited in subdivision (b)(1)

while present in any penal institution where prisoners are quartered or

under custodial supervision without the express written consent of the chief

administrator of the institution; or

(3) Knowingly and with unlawful intent take, send or otherwise cause to be

taken into any penal institution where prisoners are quartered or under

custodial supervision any telecommunication device.

T.C.A. § 39-16-201(b) (2017). The indictment listed the elements of possession of

contraband in a penal institution, including that the Defendant knowingly possessed the

controlled substances while present in a state institution where prisoners are quartered1

under custodial supervision without the express written consent of the chief administrator

of the institution. The Defendant's objection to the indictment is to the fact that the

indictment charged him with acting "knowingly and intentionally,” while the statutory

provision regarding possession merely required him to act knowingly.

This court has previously declined to hold that an indictment was invalid for

listing the incorrect mens rea when the indictment gave sufficient notice of the offenses

with which the defendant was charged. In Montez Adams v. Warden, the petitioner

asserted that the indictment was invalid because it included outdated language defining

felony murder as the "reckless killing of another” committed during the underlying

felony, whereas the new law required no culpable mental state save the intent to commit

the underlying felony. No. M2016-01073-CCA-R3-HC, 2017 WL 564897, at *2 (Tenn.



1 While the indictment omits the conjunction "or,” the Defendant does not raise this

omission as error, and the statutory provisions regarding introducing or possession contraband

are identical in this respect. - 7 -

Crim. App. Feb. 13, 2017). Despite the inclusion of the incorrect and raised mens rea,

this court concluded that the indictment cited the correct statute, achieving the

"'overriding purpose of notice to the accused ... sufficient to satisfy both constitutional

and statutory requirements.'” Id. (quoting Hammonds, 30 S.W.3d at 300). In State v.

Tyrone Sain, the indictment incorrectly lowered the mens rea requirement, listing that the

defendant acted knowingly when statute required intent. No. 02C01-9710-CC-00379,

1998 WL 999905, at *2 (Tenn. Crim. App. Dec. 24, 1998). A majority of this court

concluded that the indictment referenced the statute and the "culpable mental state was

easily ascertained by reference to this statute.” Id. at *4. State v. Mario D. Frederick,

relied on Tyrone Sain to determine that an indictment was valid when it charged knowing

conduct but the statute required intentional conduct, concluding that the indictment

referenced the statute and the mens rea was readily ascertainable from the statute. No.

M2016-00737-CCA-R3-CD, 2017 WL 2117026, at *8 (Tenn. Crim. App. May 15, 2017).

Likewise, in State v. Roger F. Johnson, the indictment stated that the defendant "should

have reasonably expected” he would be viewed by another in his act of indecent exposure

when the statute required the defendant to "reasonably expect[]” to do so. No. M2018-

01216-CCA-R3-CD, 2019 WL 3074071, at *4, *5 n.3 (Tenn. Crim. App. July 15, 2019)

(noting that the statute required subjective rather than objective mens rea). This court

concluded that "the indictment, which includes the correct statute for the charged offense

and ample information regarding the elements of this offense, provided sufficient notice

to the Defendant of the charged crime.” Id. at *5; see Hart v. State, 21 S.W.3d 901, 904-

05 (Tenn. 2000) (concluding that the mental state could be inferred from a description of

the conduct of aggravated rape even though the specific statute was not cited, and also

concluding that language tracking the previous statue's "carnal knowledge” was

sufficient to notify the defendant that he was charged with "sexual penetration”).

We conclude that, based on the cases cited above, the indictment in this case was

sufficient to provide notice of the charges, furnish a basis for the entry of judgment, and

protect the Defendant against double jeopardy. The Defendant asserts that the citation to

the general statutory provision prohibiting both possession and introduction of

contraband was not sufficient to meet constitutional requirements because although the

elements of possession were listed, the mens rea reflected the offense of introduction of

contraband into a penal institution. Both subsections of the statute require that the

contraband violation take place in a state institution where prisoners are quartered or

under custodial supervision. The indictment cited to the section of the statute generally

prohibiting contraband in a penal institution, but it tracked the specific language of the

subsection of the statute prohibiting the possession of contraband in a penal institution,

including the elements charging the Defendant with possession of contraband and

charging that the possession occurred without the express written consent of the chief

administrator of the institution. The indictment did not refer to taking, sending, or

otherwise causing contraband to be taken into the institution, and the circumstances of the - 8 -

offenses were that controlled substances were discovered in the Defendant's possession

on his way out of the institution. The statute clearly sets out the mens rea for possession

as "[k]knowingly.”

2

Because the elements of the offense of possession of contraband —

and not the elements of introduction of contraband — were listed in the indictment, the

indictment did not conflate the offenses or mislead the Defendant regarding the basis of

the charges. The indictment sufficiently identified the offenses with which the Defendant

was charged even though the heightened mens rea of "intentionally” was also erroneously

included in the indictment. We conclude that the indictment sufficed to fulfill the

"overriding purpose of notice to the accused.” Hammonds, 30 S.W.3d at 300.

Accordingly, the indictment was not invalid, and the Defendant is not entitled to relief on

this issue.

II. Errors in Jury Instructions and Verdict Form

The Defendant also asserts that the erroneous references to the offense as

"introduction of contraband into a penal institution” in the jury instructions and verdict

form constituted a constructive amendment to the indictment and a fatal variance. He

argues that the because the indictment included the mens rea of "intentionally,” the jury

should have been charged to find intent. The State contends that the instructions did not

result in a fatal variance, that any claim regarding the verdict form is waived and can only

be reviewed for plain error, and that the Defendant also waived any claim regarding

instructing the jury on intent. We agree that the Defendant is not entitled to relief.

The statute in effect at the time of the offenses outlined three possible violations of

the prohibition against contraband in a penal institution, which can be summarized as

introducing contraband into a penal institution, possessing contraband in a penal

institution, and introducing a telecommunication device into a penal institution. See State

v. Richard Burton, No. W2007-02364-CCA-R3-CD, 2008 WL 2699655, at *2 (Tenn.

Crim. App. July 9, 2008) (concluding that reversal was required when the indictment

charged the elements of introducing contraband into a penal institution but the jury was

instructed on the separate offense of possession of contraband in a penal institution).

The jury was charged:



2 Although the indictment included the word "intentionally,” a defendant who acts

intentionally also satisfies the requirement of acting knowingly. Cf. Tyrone Sain, 1998 WL

999905, at *5 (Peay, J., dissenting) (arguing that the majority was in error in holding valid the

indictment charging a lower mens rea than required because "it cannot logically be inferred from

the language of the indictment (which alleges the defendant acted 'knowingly') that the

defendant necessarily acted 'intentionally'”).- 9 -

COUNTS ONE and TWO

INTRODUCING CONTRABAND INTO A PENAL NSTITUTION

Any person who commits the offense of introducing contraband into

a penal institution is guilty of a crime.

For you to find the defendant guilty of this offense, the state must

have proven beyond a reasonable doubt the existence of the following

essential elements:

(1) that the defendant possessed a controlled substance while present

in any penal institution where prisoners are quartered or under custodial

supervision; to wit, AS TO COUNT ONE, SUBOXONE and AS TO

COUNT TWO, METHAMPHETAMINE;

and

(2) that the defendant did so without the express written consent of

the chief administrator of the institution;

and

(3) that the defendant acted knowingly.

The verdict form for Count 1 read:

We the Jury, find the defendant, DEMON L. ADKINS.

COUNT ONE:

(CHOOSE ONE)

INTRODUCING CONTRABAND INTO

A PENAL INSTITUTION

________

OR

GUILTY OF INTRODUCING

CONTRABAND INTO A PENAL

INSTITUTION.

________ NOT GUILTY.

The verdict form was identical for count two except for the numbering. - 10 -

After trial, the Defendant moved to vacate the judgments and dismiss the

indictment based on the indictment and verdict forms, asserting that the verdict forms

demonstrated he was convicted of an offense with which he was not charged and which

was not supported by the proof at trial. The trial court found that the overall title of the

statute was "Introduction or Possession of Weapons, Explosives, Intoxicants, or Drugs

into a Penal Institution Where Prisoners are Quartered” and noted that the pattern jury

instructions identify the offense only as "introducing contraband into a penal institution.”

7 Tenn. Prac. Pattern Jury Instr.—Crim. 23.01. The trial court found that the offenses

were labeled as "introducing contraband into a penal institution,” but that the jury

instructions and indictment correctly referenced a single statutory subsection related to

possession of contraband, and it denied relief.

A. Constructive Amendment of the Indictment Through the Jury Instructions

The Defendant asserts that the references in the jury instructions to "introducing

contraband into a penal institution” constitute a constructive amendment to the

indictment which requires reversal. The State responds that the jury convicted the

Defendant of the offense with which he was charged and that the jury was properly

instructed regarding the elements. We conclude that because the jury's factual findings

consisted of finding the elements of the offenses as provided by statute, any mislabeling

of the offenses in this case does not constitute a constructive amendment to the

indictment or invalidate the convictions.

We begin by observing that a defendant has a right to a correct and complete

charge of the applicable law. State v. Garrison, 40 S.W.3d 426, 432 (Tenn. 2000). The

right to a correct and complete charge is constitutional, and each issue of fact raised by

the evidence should be submitted to the jury with proper instructions. State v. Dorantes,

331 S.W.3d 370, 390 (Tenn. 2011). A jury charge should contain no statement which is

inaccurate, inapplicable, or which might tend to confuse the jury. State v. Hatcher, 310

S.W.3d 788, 812 (Tenn. 2010). Read as a whole, the instructions and verdict form should

not be inconsistent or contradictory. State v. Welcome, 280 S.W.3d 215, 220 (Tenn.

Crim. App. 2007). The jury is presumed to follow the instructions of the trial court.

State v. Blackmon, 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985).

The Defendant contends that by identifying the offense as "introducing”

contraband into a penal institution, the jury instructions created a constructive

amendment to the indictment. A criminal defendant is entitled to notice of the crime

charged and cannot be convicted of an offense not charged. State v. Goodson, 77 S.W.3d

240, 244 (Tenn. Crim. App. 2001). Rule 7(b) of the Tennessee Rules of Criminal

Procedure prohibits an amendment to the indictment after jeopardy attaches, unless the

defendant consents. Tenn. R. Crim. P. 7(b); State v. Lindsey, 208 S.W.3d 432, 439 - 11 -

(Tenn. Crim. App. 2006) (concluding it was error to allow the trial court to delete the

phrase "and, or deliver” from a duplicitous indictment but concluding the error was

harmless beyond a reasonable doubt). "'[A]fter an indictment has been returned[,] its

charges may not be broadened through amendment except by the grand jury itself.'”

Lindsey, 208 S.W.3d at 440 (quoting Stirone v. United States, 361 U.S. 212, 216 (1960)).

"Put simply, not only must the government prove the crime it charges, it must charge the

crime it proves.” Goodson, 77 S.W.3d at 244. When a jury convicts the defendant based

on evidence that modifies an essential element of the charged offense, the indictment is

constructively amendment, and the error requires automatic reversal. Id. (citing United

States v. Adams, 778 F.2d 1117, 1123 (5th Cir. 1985)). "A material variance occurs only

if the prosecutor has attempted to rely at the trial upon theories and evidence that were

not fairly embraced in the allegations made in the indictment.” State v. Mayes, 854

S.W.2d 638, 640 (Tenn. 1993); see State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim.

App. 2000). When the indictment alleges a specific mode of liability, the State must

proceed under that mode of liability and cannot convict the defendant under a different

mode of liability. State v. Edward Rudolph Wyse, Jr., No. E2019-01454-CCA-R3-CD,

2020 WL 6141011, at *11 (Tenn. Crim. App. Oct. 20, 2020) (citing Goodson, 77 S.W.3d

at 244), no perm. app. filed.

However, "before a variance will be held to be fatal it must be deemed to be

material and prejudicial.” State v. Moss, 662 S.W.2d 590, 592 (Tenn. 1984). A variance

is not material "where the allegations and proof substantially correspond, the variance is

not of a character which could have misled the defendant at trial and is not such as to

deprive the accused of his right to be protected against another prosecution for the same

offense.” Id.; see Mayes, 854 S.W.2d at 640. Accordingly, a variance between the proof

and the charges in the indictment which does not effectively modify an essential element

is subject to harmless error analysis. Goodson, 77 S.W.3d at 244 (citing Adams, 778 F.2d

at 1123). The Tennessee Supreme Court has further elucidated the materiality in the

following way:

Unless substantial rights of the defendant are affected by a variance, he has

suffered no harm, and a variance does not prejudice the defendant's

substantial rights (1) if the indictment sufficiently informs the defendant of

the charges against him so that he may prepare his defense and not be

misled or surprised at trial, and (2) if the variance is not such that it will

present a danger that the defendant may be prosecuted a second time for the

same offense; all other variances must be considered to be harmless error.

Moss, 662 S.W.2d at 592. - 12 -

Accordingly, when the proof does not correspond to the offense charged in the

indictment, a constructive amendment of the indictment has occurred, and the defendant

is entitled to relief. See, e.g., Goodson, 77 S.W.3d at 245 (reversal was required when the

indictment charged driving on a revoked license and the proof showed driving on a

suspended license); Edward Rudolph Wyse, Jr., 2020 WL 6141011, at *11 (a fatal

variance existed where the defendant was charged with rape accomplished by force or

coercion but the jury was instructed that it could convict the defendant based on rape

accomplished without the victim's consent); State v. Warren Smith, No. W2019-01882-

CCA-R3-CD, 2020 WL 4346798, at *7 (Tenn. Crim. App. July 28, 2020) (sua sponte

remanding for a new trial when the jury was instructed on multiple theories of rape but

only one theory was charged in the indictment), no perm. app. filed; State v. Eric Lebron

Hale, No. M2011-02138-CCA-R3-CD, 2012 WL 3776673, at *10-11 (Tenn. Crim. App.

Aug. 31, 2012) (reversal was required when the indictment charged robbery by violence

but the jury was instructed that the crime could be established by proving either violence

or putting the person in fear); State v. Roger W. Christy, No. M2011-00852-CCA-R3-CD,

2012 WL 804064, at *5-6 (Tenn. Crim. App. Mar. 12, 2012) (there was a constructive

amendment when State alleged that the sexual battery by an authority figure was

accomplished through the use of parental or custodial authority but the conviction was

based on the use of a position of trust).

However, when the discrepancy between the indictment and the proof at trial does

not affect the defendant's substantial rights by modifying an essential element of the

offense charged, the error is analyzed for harmlessness. See, e.g., Mayes, 854 S.W.2d at

641 (a variance was not material when the indictment specified one purchaser of

narcotics but the proof established a different purchaser); Moss, 662 S.W.2d at 592-93

(an error in the indictment regarding the ownership of stolen money sufficiently gave the

defendant notice and did not mislead him); State v. Cory Lynn White, No. E2017-00885-

CCA-R3-CD, 2018 WL 1433513, at *5 (Tenn. Crim. App. Mar. 22, 2018) (a discrepancy

between the false statement made to law enforcement as it was listed in the indictment

and the actual statement shown by the proof was not material); State v. March, 494

S.W.3d 52, 74-75 (Tenn. Crim. App. 2010) (there was no fatal variance when the

indictment alleged that the defendant conspired to have one person kill the victims but the

proof showed he conspired to have a different person kill the victims, because the identity

of the killer was not an element of the offense); State v. Richardson, 875 S.W.2d 671,

674 (Tenn. Crim. App. 1993) (refusing to find error because the record was incomplete

and because the variance was not material or prejudicial when the discrepancy was

regarding whether the aggravated assault occurred with a shotgun, as stated in the

indictment, or with a handgun).

Here, the indictment listed the elements of the offense of possession of contraband

in a penal institution. As we have determined above, the inclusion of a heightened mens - 13 -

rea was surplusage that did not implicate the elements that needed to be proven at trial.

See State v. March, 293 S.W.3d 576, 589 (Tenn. Crim. App. 2008) (holding that a surplus

term in the indictment "'cannot enlarge the essential elements of the offense'” (quoting

State v. Witherspoon, 769 S.W.2d 880, 884 (Tenn. Crim. App. 1988)). The elements of

the offense listed in the indictment were the same elements that were charged to the jury.

Accordingly, there was no variance at all between the elements charged in the indictment

and the actual elements of the offense as found by the jury at trial.

The Defendant cites to Richard Burton, 2008 WL 2699655, at *2, to support his

argument that he was charged with possession of contraband but convicted of

introduction of contraband, but we conclude the case is inapposite. In Richard Burton,

the conviction was reversed because the indictment charged the elements of introducing

contraband into a penal institution but the jury was instructed regarding the elements of

possession of contraband in a penal institution. Id. at *3-4. In the case at bar, on the

other hand, the indictment and the jury instructions both required the jury to find the

elements of possession of contraband in a penal institution.

The Defendant points to the fact that the jury was told that the name of the offense

was "introduction of contraband” to a penal institution, rather than "possession of

contraband” in a penal institution. We conclude that because the naming of the offense

was neither material nor prejudicial, the Defendant is not entitled to reversal of his

convictions. Here, the allegations and proof substantially corresponded, and the

Defendant was neither misled at trial nor deprived of his right to be protected against

another prosecution for the same offense. See Moss, 662 S.W.2d at 592. The statute

prohibits contraband in a penal institution, and the labeling of the offense as introduction

rather than possession did not constitute an essential element of the offense which the

jury was required to find. As the trial court found, the pattern jury instructions refer to

the violation of the prohibition of contraband in a penal institution as "introduction”

whether such a violation is accomplished by introducing the contraband or by possessing

the contraband. See 7 Tenn. Prac. Pattern Jury Instr.—Crim. 23.01. The jury made

factual findings regarding each of the proper elements of possession of contraband in a

penal institution, and it was not asked to make a factual finding regarding the labeling of

the offense.

In State v. Ackerman, the indictment, judgment, election, and minute entry

regarding the offense identified the offense as "sexual exploitation of a minor,” which

constituted a separate crime from the offense prohibited by the statute referenced by the

indictment, "soliciting sexual exploitation of a minor.” 397 S.W.3d 617, 624 n.1 (Tenn.

Crim. App. 2012) (citing T.C.A. § 39-13-529 (2006); T.C.A. § 39-17-1003(a)), overruled

on other grounds by State v. Sanders, 452 S.W.3d 300 (Tenn. 2014). This court

concluded that "[t]he mislabeling of the offenses ... does not create any error in the - 14 -

convictions.” Id. Likewise, in State v. Mario D. Frederick, this court noted in a footnote

that the indictment, verdict forms, and pattern instructions all referred to the crime as

"solicitation of sexual exploitation of a minor” while the statute referred to the crime as

"solicitation of minor to observe sexual conduct.” 2017 WL 2117026, at *1 n.2. This

court concluded that a "mislabeling of the offenses in this case does not create any error

in the convictions.” Id.; see State v. Osborne, 251 S.W.3d 1, 15-16 (Tenn. Crim. App.

2007) (concluding that "although the numbers assigned to the offenses listed as separate

counts in the amended bill of particulars and the State's election of offenses are

sometimes different, the charged offenses as reflected in the two documents substantially

correspond” and concluding that the variance was not material); see also State v. Keith

Dewayne Huxoll, No. E2008-02601-CCA-R3-CD, 2010 WL 271287, at *5 (Tenn. Crim.

App. Jan. 25, 2010) (concluding that erroneously labeling Class D felony evading arrest

as "evading arrest while operating a motor vehicle” did not amount to plain error because

even though the lesser included offense of Class E felony evading arrest also required the

use of a motor vehicle, a supplemental jury charge clarified the jury's finding that the

defendant committed the Class D felony).

We conclude that the error here was in the nature of a clerical error that was

neither material nor prejudicial. The jury found the elements of the offense as required

by statute and as charged in the indictment. The jury was not asked to make any finding

with respect to the labeling of the offenses. The judgment forms list the offenses as

"Contraband in Penal Inst.,” correctly referring to the general offense prohibiting

contraband in a penal institution. Accordingly, we conclude that there was not a fatal

variance or constructive amendment to the indictment, and the Defendant is not entitled

to relief.

B. Constructive Amendment of the Indictment Through the Verdict Form

The Defendant also asserts that the naming of the offenses in the verdict form as

"Introducing Contraband Into A Penal Institution” amounts to a constructive amendment

of the indictment entitling him to relief. The State asserts that this claim is waived

because the Defendant did not challenge the verdict forms at the time of trial. We agree

that the claim is waived and that the Defendant is not entitled to relief.

In general, the Defendant must lodge a contemporaneous objection to an error in

the verdict form. State v. Davidson, 121 S.W.3d 600, 618 n.11 (Tenn. 2003) (noting that

failure to object constituted waiver but electing to address the issue); State v. McKinney,

74 S.W.3d 291, 303 n.5 (Tenn. 2002) (holding failure to object or raise the issue in a

motion for a new trial waived the issue, but addressing the merits). When the defendant

fails to object, only plain error may be noticed. State v. Joseph H. Adkins, No. E2012-

02415-CCA-R3-CD, 2014 WL 1516331, at *13-14 (Tenn. Crim. App. Apr. 17, 2014)- 15 -

(concluding that the defendant's failure to object to the trial court's decision to correct a

typographical error in the verdict form regarding the underlying felony in a felony

murder conviction resulted in waiver and that no clear and unequivocal rule of law was

breached).

The Defendant did not lodge a contemporaneous objection or request plain error

analysis, and the issue is waived. In any event, while a verdict form which indicates that

the jury may have rendered its verdict based on an erroneous application of law may

constitute reversible error, see State v. Carter, 988 S.W.2d 145, 153 n.4 (Tenn. 1999), the

verdict may be valid if "it is clear that the trial court ... properly instructed the jury and

that the jury's verdict was based on the applicable law,” Davidson, 121 S.W.3d at 620.

In this case, the record establishes that the jury was properly instructed and that its verdict

was based on applicable law. See Davidson, 121 S.W.3d at 620. The instructions

correctly required the jury to find the elements of the offense. The judgments correctly

reflect convictions for the general offense of "Contraband in a Penal Inst.” Any error

with the labeling of the offense was clerical in nature. See Mario D. Frederick, 2017 WL

2117026, at *1 n.2 (concluding that although the verdict forms and other documents

mislabeled the offense, the mislabeling did not create any error in the convictions); State

v. Roger Weems Harper, No. M2010-01626-CCA-R3-CD, 2012 WL 3731736, at *2-3

(Tenn. Crim. App. Aug. 29, 2012) (when the jury was only instructed on the elements of

Class D felony evading arrest, a lack of specificity in the verdict form in labeling the

offense did not require a reduction to Class E felony evading arrest); State v. Bill Myers,

No. 03C01-9304-CR-00109, 1993 WL 444596, at *4 (Tenn. Crim. App. Nov. 3, 1993)

(because the jury instructions were correct, a clerical error in leaving off the signature

and date blanks next to the "not guilty” option did not warrant reversal). The Defendant

is not entitled to relief.

C. Instruction Regarding Intent

The Defendant asserts that because the indictment included the word

"intentionally,” it was error to instruct the jury that it could convict him on "mere

knowing possession.” The State responds that this issue is waived for failure to object or

to include the issue in his motion for a new trial and that he is not entitled to plain error

relief. We conclude that the Defendant is not entitled to relief.

Under Tennessee Rule of Criminal Procedure 30(b), a party's failure to object to a

jury instruction "does not prejudice the right of a party to assign the basis of the objection

as error in a motion for a new trial.” However, the Defendant waived the issue by failing

to raise it in his post-trial motions. See Tenn. R. App. P. 3(e) (stating that when the

motion for a new trial omits issues regarding "jury instructions granted or refused ... or

other action committed or occurring during the trial of the case,” the issue will be treated - 16 -

as waived). In any event, the Defendant has cited to no authority that the jury should

have been required to find he acted intentionally when the statute did not require such a

finding and when the indictment provided adequate notice to apprise the Defendant that

he was being charged with knowing possession. To the contrary, surplusage in the

indictment "'cannot enlarge the essential elements of the offense.'” March, 293 S.W.3d

at 589 (quoting Witherspoon, 769 S.W.2d at 884). Accordingly, the Defendant is not

entitled to relief on this issue.

III. Sentencing

For the first time on appeal, the Defendant asserts that the savings statute in

Tennessee Code Annotated section 39-11-112 applies to his sentence and that he is

entitled to a new sentencing hearing and a lesser punishment. The State argues that this

argument is waived and that the savings statute does not apply. The Defendant responds

that the savings statute applies, that the new legislation has rendered the sentence

imposed illegal, and that accordingly the issue is not subject to waiver, and he

alternatively requests plain error review. We review de novo whether or not the

Defendant is entitled to the benefit of the savings statute. State v. Menke, 590 S.W.3d

455, 459 (Tenn. 2019). We conclude that the Defendant is entitled to the lesser

punishment set out by the amendment to the statute defining his criminal offenses, and

we remand for resentencing.

The State argues that the Defendant has waived his entitlement to benefit from the

savings statute by not raising the issue in the trial court. The Defendant responds that his

sentence is reviewable as illegal or that he is entitled to plain error relief. When

conducting appellate review of a case, this court can address the imposition of an illegal

sentence, even if the issue is not raised by the parties. Tenn. R. App. P. 13(b) (noting that

the appellate court may consider issues sua sponte "(1) to prevent needless litigation, (2)

to prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial

process”); State v. Brown, 479 S.W.3d 200, 210 (Tenn. 2015) (citing State v. Burkhart,

566 S.W.2d 871, 873 (Tenn. 1978), for the proposition that an illegal sentence can be

corrected at any time); State v. Terrance E. Kindall, No. M2014-01680-CCA-R3-CD,

2015 WL 4087200, at *2-3 (Tenn. Crim. App. July 7, 2015) (sua sponte raising the issue

of an illegal sentence and vacating the sentence); State v. Dwaylan Dupree House, No.

W2012-01272-CCA-R3-CD, 2013 WL 12185203, at *7 (Tenn. Crim. App. June 21,

2013) (reversing an illegal sentence sua sponte and remanding); see State v. Petr Pompa,

No. M2016-00193-CCA-R3-CD, 2017 WL 1014529, at *19 (Tenn. Crim. App. Mar. 15,

2017) (noting sua sponte that the trial court's alteration of the judgment forms after the

judgment had become final was proper because it served to correct an illegal sentence).

An illegal sentence is one that directly contravenes an express statutory provision or is - 17 -

not authorized by the applicable statutory scheme. State v. Wooden, 478 S.W.3d 585,

594 (Tenn. 2015).

The Defendant argues that the sentence was illegal and also cites to cases in which

he believes this court has reviewed the trial court's failure to apply the savings statute to

impose a lesser penalty under plain error. See State v. Steven Michael Odom, No.

W2018-00634-CCA-R3-CD, 2019 WL 1126068, at *8-9 (Tenn. Crim. App. Mar. 12,

2019) (not conducting a plain error analysis but reversing the sentence sua sponte for

failure to apply the savings statute); State v. Brandon Ramel Cole-Pugh, No. W2017-

02402-CCA-R3-CD, 2019 WL 1239868, at *3 (Tenn. Crim. App. Mar. 18, 2019) (not

examining the factors for plain error but characterizing sua sponte relief under the

savings statute as "a matter of plain error”). The State opposes plain error relief on the

grounds that the savings statute does not apply and on the grounds that Tennessee Rule of

Criminal Procedure 36.1 provides an alternative route to challenge an illegal sentence.

The State does not cite to any authority to support the novel suggestion that our direct

review is foreclosed simply because the rules provide for an additional avenue of relief

other than direct review. We conclude that the Defendant's challenge is one alleging that

his sentence is illegal and imposed in direct contravention of the savings statute, and it is

accordingly not waived, but even if we were to apply plain error review, the effect would

be the same because we determine that the savings statute does apply to the Defendant's

sentence.

Generally, a sentence is imposed "pursuant to the statute in effect at the time of the

offense.” State v. Smith, 893 S.W.2d 908, 919 (Tenn. 1994). However, under Tennessee

Code Annotated section 39-11-112, a subsequent statute will apply to sentencing if it

provides for a lesser penalty:

When a penal statute or penal legislative act of the state is repealed or

amended by a subsequent legislative act, the offense, as defined by the

statute or act being repealed or amended, committed while the statute or act

was in full force and effect shall be prosecuted under the act or statute in

effect at the time of the commission of the offense. Except as provided

under § 40-35-117, in the event the subsequent act provides for a lesser

penalty, any punishment imposed shall be in accordance with the

subsequent act.

T.C.A. § 39-11-112. Accordingly, when an amendment provides for a "lesser penalty”

than the previous version, "the condition provided in the Criminal Savings Statute is

satisfied and ... the amended version of the ... statute is applicable even where ... the

offense occurred before the amendment's effective date.” Menke, 590 S.W.3d at 470. - 18 -

The savings statute does not apply to a sentence imposed prior to the amendment's

effective date. State v. Keese, 591 S.W.3d 75, 84 (Tenn. 2019).

Here, the Defendant was convicted of possessing contraband in a penal institution,

an offense committed in September 2017. The offense required the State to show that the

Defendant "[k]nowingly possess[ed]” any controlled substances or controlled substance

analogues found in title 39, chapter 17, part 4 "while present in any penal institution

where prisoners are quartered or under custodial supervision without the express written

consent of the chief administrator of the institution.” T.C.A. § 39-16-201(b)(2) (2017).

This offense was a Class C felony. T.C.A. § 39-16-201(c). The Legislature subsequently

passed a bill deleting subsections (b) and (c) of the section and substituting language

making it an offense to "[k]nowingly and with unlawful intent possess any of the

following materials while present in any penal institution where prisoners are quartered

or under custodial supervision without the express written consent of the chief

administrator of the institution.” 2019 Tenn. Pub. Acts, c. 486, § 7, eff. July 1, 2019

(emphasis added); see T.C.A. § 39-16-201(b)(2) (2019). The materials prohibited

include any controlled substance or controlled substance analogue found in title 39,

chapter 17, part 4. Id. The offense of either possessing or introducing contraband in the

form of controlled substances into a penal institution is now a Class D felony, whereas

the offense of possessing or introducing contraband in the form of a weapon remains a

Class C felony. T.C.A. § 39-16-201(c)(1), (2) (2019). The amendment to the statute was

approved on May 24, 2019, and took effect July 1, 2019, prior to the Defendant's

sentencing hearing.

When an offense is amended, the savings statute requires the offense to be

prosecuted under the statute in effect at the time of the offense but "in the event the

subsequent act provides for a lesser penalty,” the defendant is entitled to the benefit of the

penalty. T.C.A. § 39-11-112. Here, the Legislature amended both the mens rea of the

offense and the penalty. The Legislature altered the offense by making possession of

contraband prohibited when a defendant acts "[k]nowingly and with unlawful intent” as

opposed to simply "[k]nowingly.” The Legislature likewise altered the penalty for

possession of contraband in the form of controlled substances, lowering the offense from

a Class C to a Class D felony. By the plain terms of the savings statute, the altered mens

rea element would not apply to the Defendant's offenses, but the lesser penalty would

apply to his sentence. The State cites to no authority for the proposition that we may only

apply one prong of the savings statute. While the Legislature made a minor change to the

mens rea of the crime, the offense is substantially unaltered, and we reject the State's

contention that the offense is not in essence the same. Compare State v. Young, 904

S.W.2d 603, 606 (Tenn. Crim. App. 1995) (the defendant could be prosecuted for both

theft and false pretenses when the criminal acts occurred both prior to and after the

amendment of statute and when the offenses, which were codified in different chapters of - 19 -

title 39, required different elements). We note that the legislative history of the bill

confirms that the Legislature intended to lower the punishment for possession of

controlled substances in penal institutes. See, e.g., Statement of Senator John Stevens,

Senate Judiciary Committee, February 26, 2019 (noting that the act "reduces the

punishment for drug possession in prison from a Class C felony to a Class D felony”).

Accordingly, the Defendant was entitled to benefit from the savings statute, and the trial

court was required to impose a lesser punishment in accordance with the amendment.

See T.C.A. § 39-11-112 (mandating that "any punishment imposed shall be in accordance

with the subsequent act” (emphasis added)).

The savings statute required the trial court to apply the lesser penalty and to enter

judgments showing that the Defendant's convictions were Class D felonies. Because the

trial court applied the greater punishment and sentenced the Defendant for having

committed Class C felonies, the sentences are reversed, and the case is remanded for

resentencing.

Based on the analysis above, we affirm the Defendant’s convictions but reverse

his sentences and remand for resentencing in accordance with this opinion.